People v. Harris

Filed 4/23/18 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)

THE PEOPLE, C079470

Plaintiff and Respondent, (Super. Ct. Nos. P13CRF0031, P13CRF0343) v.

COLLEEN ANN HARRIS,

Defendant and Appellant.

Motion to recall the remittitur. Denied.

Charles R. Khoury Jr., for Defendant and Appellant.

Xavier Becerra, Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez, Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

In People v. Woods (2018) 19 Cal.App.5th 1080, we held that Senate Bill No. 620 and the associated amendment to Penal Code1 section 12022.53 (effective January 1,

1 All further section references are to the Penal Code unless otherwise stated.

1

2018) apply retroactively to nonfinal2 cases. (Woods, at pp. 1090-1091.) We reached this conclusion by following our Supreme Court’s directive in In re Estrada (1965) 63 Cal.2d 740 that “ ‘when a statute mitigating punishment becomes effective after the commission of the prohibited act but before final judgment the lesser punishment provided by the new law should be imposed in the absence of an express statement to the contrary by the Legislature.’ ” (Woods, at p. 1090.) In this case, defendant Colleen Ann Harris filed a motion to recall the remittitur to either permit briefing on the application of Senate Bill No. 620 and the recent amendment to section 12022.53 to her case, which was final almost a year before the statute’s effective date, or remand the case to the trial court to exercise its discretion as to whether to strike the firearm enhancement under the amendment. Noting that recalling a remittitur is an extraordinary remedy generally available in a limited number of instances, defendant relies on a narrow exception espoused by our Supreme Court in People v. Mutch (1971) 4 Cal.3d 389. As explained, however, the narrow exception does not apply here. We deny the motion and hold a motion to recall the remittitur is not the appropriate procedural vehicle through which to seek the requested relief in cases that are final for purposes of Estrada and do not involve Mutch-type circumstances. FACTUAL AND PROCEDURAL BACKGROUND A jury found defendant guilty of the first degree murder of Robert Harris, her husband. The jury also found true an allegation that defendant discharged a firearm causing death under section 12022.53, subdivision (d) and she was sentenced to 50 years